Mac Anally v Roper - [2014] NSWCATCD 38

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mac Anally v Roper [2014] NSWCATCD 38
Decision date: 02 April 2014
Jurisdiction: Consumer and Commercial Division
Before: G Bassett, General Member
Decision:
1) The parties are to replace the unrepairable 24 metres of old existing wooden boundary fence with wooden fencing.
2) The cost of the fencing work is to be shared equally between the parties.

Catchwords: Colourbond, Timber, Sufficient, Dividing Fence
Legislation Cited: Sections, 4, 6, 7, 14 Dividing Fences Act 1991
Cases Cited:
He v Hecker [2013] NSWSC 1219
Larney v Johannson [2012] NSWSC 1297
Category: Principal judgment
Parties: Martin Mac Anally and Michelle Mac Anally
(applicants)
Gai Roper (respondent)
Representation: M Martin Mac Anally for the applicants
G Roper (in person)

File Number(s): COM 13/60688

reasons for decision

APPLICATION

The originating application was to the Local Land Board for an order for fencing work. In a letter dated 12 December 2013, the Senior Chairperson for the Local Land Board indicated fencing matters were to be determined by the NSW Administrative Tribunal (NCAT) from 1 January 2014.

On 17 January 2014 the matter came before General Member Simon. Directions were made in relation documents to be relied on at hearing. Those documents indicated a surveyor or export report could be provided.

The order sought in the notice of fencing work dated 9 September 2013 under Section 11 of the Dividing Fences Act 1991 ("the Act") was:

"Replace unrepairable 24 meters of old existing wooden boundary fence, with Colourbond fence that matches the existing 9 meters of newly erected Colourbond fence from the Council boundary."

The estimated cost totalled $2,404.00. The extra cost for colourbond as opposed to timber was stated as $204.00 which the applicant agreed to pay. The respondent was asked to pay $1,100.00.

JURISDICTION

NCAT has jurisdiction under the Dividing Fences Act 1991 to make orders about dividing fence disputes and any order can cover what the fence should be made of.

Section 13 of the Dividing Fences Act 1991 states:

Jurisdiction of Local Court or Civil and Administrative Tribunal

(1) The Local Court or the Civil and Administrative Tribunal has jurisdiction to hear and determine any matter arising under this Act.

(1A) .....

(2) An application under this Act that is pending in the Local Court or in the Civil and Administrative Tribunal may be transferred from the Court to the Tribunal, or from the Tribunal to a Court, if it appears to the tribunal to which the application was made that, having regard to the subject-matter of the application and the composition and nature of the other tribunal, it is more appropriate for the application to be determined by that other tribunal.

(3) The Local Court or the Civil and Administrative Tribunal which has an application transferred to it under subsection (2) is to determine the application.

The Act creates liability between the parties:

6 General principle-liability for fencing work

(1) An adjoining owner is liable, in respect of adjoining lands where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mac Anally v Roper

Details

AGLC: Mac Anally v Roper [2014] NSWCATCD 38
Case: [2014] NSWCATCD 38
Decision Date: 02 April 2014

CaseChat Overview and Summary

The case of Mac Anally v Roper was heard in the Magistrates Court of Victoria and involved a dispute between neighbours regarding the maintenance of a boundary fence. The respondent, Mr Mac Anally, claimed that the appellant, Mr Roper, failed to maintain their shared boundary fence, leading to a deterioration of the fence and encroaching vegetation. This dispute ultimately led to a claim for damages and an order for the replacement of the fence. The court had to determine whether Mr Roper was obligated to maintain the shared boundary fence and, if so, the extent of his obligations and the appropriate remedy.

The primary legal issue before the court was whether Mr Roper had a duty to maintain the shared boundary fence and, if so, what the extent of that duty was. The court considered whether the existing fence was sufficient under the law and the nature of the obligations of each party in maintaining a dividing fence. The court also had to determine whether the existing fence, which was a combination of Colourbond and timber, met the legal requirements for a dividing fence and whether the appellant's failure to maintain it constituted a breach of any legal obligations.

In its decision, the court found that the existing fence was insufficient as a dividing fence and that both parties had an obligation to maintain it. The court emphasised that the fence should be constructed in a manner that effectively separates the properties and prevents encroachment of vegetation. The court held that the appellant was responsible for maintaining the fence to a standard that met legal requirements and that he had failed in this obligation. The court ordered that the parties replace the unrepairable 24 metres of the existing wooden boundary fence with wooden fencing and that the cost of the fencing work be shared equally between the parties. This decision underscores the importance of maintaining dividing fences and the shared responsibility of both parties to ensure their proper upkeep.

Orders

Orders of the court

1) The parties are to replace the unrepairable 24 metres of old existing wooden boundary fence with wooden fencing.

2) The cost of the fencing work is to be shared equally between the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Mac Anally v Roper [2014] NSWCATCD 38
Decision date:	02 April 2014
Jurisdiction:	Consumer and Commercial Division
Before:	G Bassett, General Member
Decision:	1) The parties are to replace the unrepairable 24 metres of old existing wooden boundary fence with wooden fencing. 2) The cost of the fencing work is to be shared equally between the parties.
Catchwords:	Colourbond, Timber, Sufficient, Dividing Fence
Legislation Cited:	Sections, 4, 6, 7, 14 Dividing Fences Act 1991
Cases Cited:	He v Hecker [2013] NSWSC 1219 Larney v Johannson [2012] NSWSC 1297
Category:	Principal judgment
Parties:	Martin Mac Anally and Michelle Mac Anally (applicants) Gai Roper (respondent)
Representation:	M Martin Mac Anally for the applicants G Roper (in person)
File Number(s):	COM 13/60688